British Columbia High Court Deals Blow To Mandatory Minimums

The Appeal Court of British Columbia, the province’s highest, on December 28 upheld a lower court ruling that the minimum two-year prison term for marijuana possession “for purpose of trafficking” under Canada’s Controlled Drugs & Substances Act is unconstitutional. Justice Sunni-Stromberg-Stein dismissed the Crown’s appeal of a 10-month sentence imposed when Phillip Francis McGee pleaded guilty after the Royal Canadian Mounted Police raided his home in Surrey. The ruling is a huge blow to mandatory minimums.

The Ruling

The 2013 raid turned up a grow operation with over 600 plants, according to the Surrey Now-Leader. Under the CDSA, a mandatory two-year term kicks in at 500 plants. It jumps to three years in cases where property belonging to a third party is used—and McGee was indeed renting. But when the case went before Justice Terence Schultes of BC Supreme Court (actually a lower court in the provincial system), he chucked the mandatory minimum, finding that it violates Section 12 the Canadian Charter of Rights & Freedoms, which bars “cruel and unusual punishment.”

The unanimous ruling to uphold this decision by a three-judge panel of the Appeal Court means that no one who faces charges for more than 500 plants in BC will get the two-to-three-year mandatory minimum—unless the ruling is overturned in the Supreme Court of Canada. And, as the local website The Georgia Straight notes, that appears highly unlikely, as the Canadian high court almost never hears cases in which the appellate court ruling was unanimous.

Justice Stromberg-Stein wrote that “McGee has successfully completed his 10-month sentence,” indicating that he will be set free.

Other Cases Like This

This follows a similar case that in 2016 won a little-noted but potentially landmark ruling from the Canadian Supreme Court. This concerned Joseph Lloyd, who was arrested in Vancouver in 2013 and convicted on three counts of possessing crack, methamphetamine and heroin for the purpose of trafficking. Similarly, the provincial judge refused to impose the one-year mandatory minimums. But that time, the lower court ruling was overturned by the BC Appeal Court. Lloyd then appealed to Canada’s high court. In April 2016, Supreme Court in Ottawa struck down the mandatory sentence.

In the new case, concerning McGhee, the provincial high court may have decided it was better to acquiesce than to have its own ruling overturned by the federal high court, as in 2016. This may not have been automatic, as different substances were involved, and therefore different sections of the CDSA. But it was probably a good bet.

Final Hit: British Columbia High Court Deals Blow To Mandatory Minimums

As an analysis on the Canadian legal website TheCourt.ca found, “the court’s judgment in R v Lloyd will not necessarily affect the court’s general tendency to defer to Parliament on mandatory minimums. However, we do propose that the majority’s decision will likely make mandatory minimums for drug offenses more constitutionally vulnerable to section 12 scrutiny.”

And when Canada’s new Liberal government took over in 2015, Justice Minister Jody Wilson-Raybould pledged to undertake a review of any unjust laws that may be on the books—particularly mentioning mandatory minimums. A commentary last year on Canadian Lawyer complained that the government has been dragging its feet on the promised review when it comes to mandatory minimums. But there is a sense that the tide is turning on this question in Canada.

It remains to be seen if this victory for judicial independence and simple humanity will be emulated south of the border in the United States.